Ombudsman damns cross-border permit system

Media statement

December 7, 2020

Tania Maxwell says the Victorian government must mandate the right of Victorians to return home during a future public health epidemic, pandemic or disaster.

The Derryn Hinch’s Justice Party Member for Northern Victoria has also called on the government to apologise to thousands kept from home and forced to rely on relatives, friends, caravans or tents for a roof and a bed at the height of the COVID-19 pandemic.

Ms Maxwell said the Victorian Ombudsman’s investigation into Victoria’s border-crossing permit directions, released today, showed:

  • 33 per cent of 2649 exemption applications were granted to attend a funeral or visit a loved one at the end of their life
  • 8pc of 10,812 exemption applications were granted to return home for health, wellbeing, care and compassionate reasons
  • 4pc of 971 exemption applications were granted to return to care for animals
  • 75pc of 553 exemption applications were granted for emergency relocation

“The Ombudsman’s report into the failings of the Victorian government’s cross-border permit system will be bittersweet for thousands of Victorians prevented from returning home during the COVID-19 pandemic,” Ms Maxwell said.

“Throughout months of border closures, I raised with the offices of the Health Minister and Cross-Border Commissioner time-and-again the pleas from Victorians stopped by the government’s Travel Permit System from returning home,” Ms Maxwell said.

“These residents were denied the right to return home, children were separated from their parents, carers were unable to help loved ones through illness, and families were stopped from seeing a parent or grandparent at their end of life.

“These stories are heartbreaking and this report shows a system completely overwhelmed and ill-equipped to ensure that applications were treated in a compassionate, considered and consistent way.

“The job for the government now is to respond to the Ombudsman’s recommendations and provide a watertight, legal guarantee to Victorians of the right to return home in the event of a similar health or disaster threat.

“Because the pandemic management legislation passed last week by Labor, Reason, Greens, Animal Justice and Transport Matters parties does not enshrine this right in the new laws.

“When the Attorney-General finally sought the DHJP’s view on the pandemic bill on November 18 we said the legislation should mandate that all Victorians have an explicit right to return to home.

“We also said it should mandate a reasoned, fair and consistent process for people to appeal a rejected border permit application.

“But the Ombudsman shows the department directed its significant resources into keeping people out rather than helping them find safe ways to get home.

“She also said the government used the exemption system as a blunt instrument that led to unjust outcomes, potentially for thousands of people, and described these as some of the most questionable decisions she had reviewed in her seven years in the job.

“The government’s actions also damaged public trust.”


Read Why Derryn Hinch’s Justice Party opposes the government’s pandemic management bill

Why we oppose the pandemic bill


November 16, 2021

Tania MAXWELL (Northern Victoria) (22:07):

I rise to speak on the Public Health and Wellbeing Amendment (Pandemic Management) Bill 2021.

I would like to thank my colleague, Mr Grimley, for his speech, which reaffirms many of my constituents’ thoughts on this bill. When we debated the Public Health and Wellbeing Amendment (State of Emergency Extension) Bill 2021 in this Parliament 14 months ago, I said it was one of the most important pieces of legislation we would ever consider, and I said that because it was about how government should be allowed to function and operate in a democracy. Our role is to scrutinise the extent to which it is appropriate for governments and public officials to seek to impose their own will over the rights, freedoms and liberties of citizens.

As we publicly declared two weeks ago, Derryn Hinch’s Justice Party will not be supporting this bill. The thousands and thousands of constituents who I have engaged with over the last 18 months, who have contacted me about this specific bill and have provided feedback about the restrictions imposed over the last 20 months—border issues, problems accessing health services, unemployment, financial losses, poor mental health and missing education—understand that we need a public health response. However, they also want those approaches to be proportionate and to allow broader considerations to other impacts.

While this bill shifts some of the powers given under the state of emergency from the chief health officer across to the minister, it still accumulates substantial power in the hands of a chosen few. Ms Patten talks about human rights and says that this is what this bill is doing. There is only one side of human rights that she is conveniently addressing here. What about those who have been and will continue to be affected by these laws—those who have lost their jobs, their lives, their livelihoods? Those people do not count today, according to Ms Patten’s speech. Those people who could not sit with a dying child or parent, those who could not seek medical attention for their cancer when the state of emergency was legislated—no, no mention of the impact that they have experienced.

The powers in this bill make it even easier for the government of the day to repeat the pattern of restrictions we have seen in force over the last 18 months. It gives little assurance there will be any change from the strategy that gave us the title of the most locked down region in the world.

I have repeatedly raised in this Parliament that these restrictions were imposed time and again on places without cases of COVID-19, places like Corryong, which only contracted its first COVID case in October this year, where children were forced out of school to remote learning, many of them in places with little or no internet. Businesses were closed, tourism shut and people mandated to wear masks in public places, even when they were alone—even when they were walking in a paddock on their own. Instead of pursuing ways to proportionately manage restrictions and apply some balance against the risk in our regional areas, these places without cases were forced to live under much of the same blanket restrictions as those living in metropolitan regions.

Echoing the concerns of Liberty Victoria, people have been deeply frustrated that neither the health advice nor other analysis that underpins these restrictions has ever been made public. This information should be made public, whether the government is legally obliged to or not. I know the government will say that if this bill is passed, they will now provide this information, but my question is: why hasn’t it been made public through the ongoing lockdowns that we have all endured across Victoria?

Following the passage of this bill it is highly likely, if not a guarantee, that this government will make a pandemic declaration immediately, even with 90 per cent of the population fully vaccinated, the curve flattened and the risk reduced as much as possible through vaccination rates. This could go on for years, even though the government says we are now living with COVID. Granted, the minister now will have to publish the health advice, but we do not really know how detailed this will be, and it does not have to be published at the same time the declaration is made. Further, if the government fails to publish the health advice, the orders are not rescinded. They stay. Liberty Victoria makes a very solid point that the responsible person should report to Parliament on any order made under the Public Health and Wellbeing Act 2008, not just pandemic orders, because all such matters are of public concern and we are here to serve them, not the other way around.

The focus on detention and punitive measures in the bill is also of concern to us. We cannot support a public health response that focuses on detention, exclusion, policing and fines, whether that relates to warrantless entries, extensive mandates for vaccines, curfews or border closures—and we have seen plenty of those. The detention review processes are limited to the department reviewing itself and provide little or no apparent means for other orders to be challenged. Through this pandemic we saw thousands of people excluded from entering their home state and returning to their private place of residence, some for months, and there seems to be no provision for them to have their matter reviewed. The role of the Scrutiny of Acts and Regulations Committee (SARC) in scrutinising orders is an improvement to the current situation. However, this does not happen on every order, only when they consider it necessary. The independent committee does not require representation of small business, education or mental health or an explicit understanding of regional and rural areas.

The initial state of emergency was declared on 16 March 2020 for the purpose of flattening the curve of hospitalisation and to prepare our health system. I can understand that preparing the health system for a pandemic disease is no easy feat, but I cannot understand that when our health system has been operating close to full capacity there was little means available to expand and prepare it to respond. Fixing this will be vital to supporting our health workforce in the future and ensuring we do not have to lock down citizens for 18 months instead.

I cannot speak on this bill without expressing my disappointment that three crossbenchers were actively brought into the fold of the government to participate in the development of this legislation, to the express exclusion of others. I have worked cooperatively and collaboratively with this government on important matters, including supporting victims of crime, the initiation of the Victorian Law Reform Commission review into stalking, the Better Regulation Victoria review of tobacco regulation and even last sitting week adding female-specific cancers to the list of presumptive rights for our firefighters. For the government to push this through the Legislative Assembly as it did, to skip the scrutiny of SARC and to skip public consultation or the release of an exposure draft is an opportunity lost to allow the people we serve to have their voice. These issues were raised by the president of the Victorian Bar.

The government is asking the public to trust it, but it has already compromised this trust through the lack of transparency and due diligence by which this legislation was developed. I know this legislation will pass, but I hope the government chooses very sparingly to use it.